# Approval and Promulgation of Implementation Plans; Colorado; Correction

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URL: https://www.frixlaw.com/law-library/documents/fr%3A97-32926

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 17, 1997
- **Citation:** 62 FR 66046

## Text

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FRL-5933-7]

Approval and Promulgation of Implementation Plans; Colorado;
Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing corrections to the State Implementation Plan
(SIP) for the State of Colorado. First, EPA is proposing corrections to
its January 21, 1997 rulemaking in which EPA approved several Colorado
new source review (NSR) SIP revisions. Specifically, pursuant to a
December 17, 1996 request from the State of Colorado, EPA is proposing
to remove from the approved SIP two sections of Colorado's prevention
of significant deterioration (PSD) rules in Regulation No. 3. EPA is
also proposing to disapprove a provision in the State's definition of
``federally enforceable'' in Regulation No. 3 that EPA inadvertently
failed to disapprove in its January 21, 1997 rulemaking. Specifically,
the provision in that definition states that provisions which are not
required by the Federal Clean Air Act (Act) shall not be submitted as
part of the SIP and shall not be federally enforceable. This provision
is being proposed for disapproval because the Act provides that any
provision approved by EPA as part of the SIP is federally enforceable
unless and until the State requests, and EPA approves, a SIP revision
removing such provision.
Second, EPA is proposing to correct an October 5, 1979 rulemaking
in which EPA incorrectly listed Colorado House Bill 1109 as being
approved as part of the Colorado SIP.
Last, EPA is proposing to correct a September 23, 1980 rulemaking,
in which EPA mistakenly replaced a Colorado SIP approval in 40 CFR
52.320 with a Montana SIP approval.

DATES: Comments must be received in writing on or before January 16,
1998.

ADDRESSES: Written comments on this action should be addressed to Vicki
Stamper, 8P2-A, Environmental Protection Agency, Region VIII, 999 18th
Street, suite 500, Denver, Colorado 80202-2466. Copies of the documents
relative to this action are available for inspection during normal
business hours at the following location: Air Program, Environmental
Protection Agency, Region VIII, 999 18th Street, suite 500, Denver,
Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII,(303)
312-6445.

SUPPLEMENTARY INFORMATION:

I. Corrections to January 21, 1997 Rulemaking

On January 21, 1997, EPA promulgated approval of five Colorado SIP
revisions submitted on November 12, 1993, August 25, 1994, September
29, 1994, November 17, 1994, and January 29, 1996. (See 62 FR 2910-
2914.) All of these SIP submittals contained revisions to the State's
NSR and PSD provisions in Parts A and B of Colorado Regulation No. 3.

A. Correction to Exclude Sections V.B. and VII.A.5. of Part B of
Colorado Regulation No. 3 From the SIP

The November 12, 1993 SIP submittal contained revisions to
Regulation No. 3 that were adopted by the Colorado Air Quality Control
Commission (AQCC) at a July 15, 1993 public hearing. The primary
purpose of the State's July 1993 rulemaking was to adopt an operating
permit program to address the requirements of title V of the Clean Air
Act Amendments of 1990 and 40 CFR part 70. Concurrent with the adoption
of its operating permit program, the State made revisions to its
construction permit regulations, which are also in Regulation No. 3, to
make the two programs work together and to allow for the implementation
of certain title V operating permit provisions. At the same time, the
State also completely restructured and renumbered the provisions in
Regulation No. 3. While the majority of the provisions in the

[[Page 66047]]

State's construction permitting regulations were unchanged, the State's
November 12, 1993 SIP submittal included the State's entire
construction permitting regulations (including its PSD rules) because
of the restructuring and renumbering of Regulation No. 3.
On December 17, 1996, the State submitted a request to exclude two
sections of Part B of Regulation No. 3 from its November 12, 1993 SIP
submittal, specifically Sections V.B. and VII.A.5. (referred to herein
as Sections V.B. and VII.A.5. or as ``the two provisions.'') On January
21, 1997, EPA's approval of the State's November 12, 1993 SIP submittal
was published (62 FR 2910). The approval did not exclude Sections V.B.
and VII.A.5.
Section V.B. of Part B of Regulation No. 3 applies the Class I
sulfur dioxide PSD increment to certain pristine areas in Colorado that
are not designated Class I by the Federal PSD regulations. This is not
required by the Act or Federal PSD regulations. Section VII.A.5. of
Part B of Regulation No. 3 provides that no new major stationary source
or major modification shall individually consume more than 75% of an
applicable increment. No such provision (or similar provision) is
required by the Act or Federal PSD regulations. Neither of the two
provisions is necessary for the State to demonstrate attainment and/or
maintenance of the National Ambient Air Quality Standards (NAAQS).
Therefore, EPA believes that these two provisions may be removed from
the SIP.
In this instance, EPA believes it is appropriate to remove the two
provisions from the SIP pursuant to EPA's authority under section
110(k)(6) of the Act. Section 110(k)(6) of the Act provides as follows:

Whenever the Administrator determines that the Administrator's
action approving, disapproving, or promulgating any plan or plan
revision (or part thereof), area designation, redesignation,
classification, or reclassification was in error, the Administrator
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Such determination and the basis thereof
shall be provided to the State and public.

The State submitted its request well before EPA's final approval of
the State's November 12, 1993 SIP submittal was published in the
Federal Register or was otherwise announced to the public. Thus, EPA
had an opportunity to exclude the two provisions from the final
published rule, but failed to do so.
Although there may be instances where a request to withdraw
components of a SIP implicates the Act's requirement for State notice
and hearing, EPA does not believe this is one of them. First, these two
provisins had been part of the State's regulations for many years
1, but had been expressly excluded from the State's SIP
submittals of prior PSD revisions and had been expressly excluded from
EPA's rulemaking actions on those prior PSD rule revisions. (See 51 FR
31125, September 2, 1986, and 56 FR 12850, March 28, 1991.) Second, the
State merely renumbered these two provisions at its July 15, 1993
hearing, and there was no indication that the State intended to change
course and submit these two provisions to EPA for approval into the
SIP. Presumably, if the State had intended such a change in course, the
State would have focused its notice and public hearing on the two
provisions prior to adopting the renumbering of Regulation No. 3 and
submitting it to EPA. This did not occur, and the evidence suggests
that submittal of these two provisions to EPA was merely an oversight.
If EPA had reviewed the circumstances more carefully when it received
the State's December 17, 1996 letter, EPA could have corrected its
final rule before publication.
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\1\ The AQCC originally adopted Section V.B. on March 10, 1983
and Section VII.A.5. on May 17, 1990.
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With respect to Section V.B., EPA also believes a correction is
necessary because Section V.B. (which, as stated above, applies the
Class I sulfur dioxide increment to certain pristine Class II areas in
Colorado) is inconsistent with the requirements of EPA's PSD
regulations. Specifically, 40 CFR 51.166(g) contains certain
requirements for redesignating an area from Class II to Class I, and
the State has not addressed those requirements for the areas listed in
Section V.B. Thus, EPA erred in approving Section V.B. as part of the
SIP. This position is consistent with EPA's prior rulemaking regarding
this provision. In a September 2, 1986 action, EPA did not approve this
provision into the SIP, explaining that the State had not followed the
specific procedures outlined in 40 CFR 51.166(g) for redesignating an
area from Class II to Class I. (See 51 FR 31125.)
For the reasons discussed above, EPA is correcting its January 21,
1997 SIP approval to remove Sections V.B. and VII.A.5. of Part B of
Regulation No. 3 from the approved SIP.

B. Correction to Disapprove Provision in Definition of ``Federally
Enforceable'' in Colorado Regulation No. 3

In the State's September 29, 1994 SIP submittal of revisions to
Regulation No. 3, the State revised its definition of ``federally
Enforceable'' in Section I.B.22. of Part A of Colorado Regulation No.
3. EPA's nonattainment NSR and PSD permitting regulations in 40 CFR
51.165 and 51.166, respectively, require this term to be defined in
States' permitting programs, as it is used in various definitions and
provisions of the Federal preconstruction permitting regulations.
Colorado's definition of ``federally enforceable'' basically
mirrors the Federal definition in 40 CFR 51.165(a)(1)(xiv) and
51.166(b)(17). However, on August 18, 1994, the State revised this
definition (among other things) to add a provision stating the
following: ``Notwithstanding the foregoing, and except for the
voluntarily accepted limitations and conditions described in the
preceding sentence, any provision, standard, or regulation that is not
required by the Federal Act or that is more stringent than the Federal
Act is adopted under powers reserved to the State of Colorado pursuant
to section 116 of the Federal Act, is not to be submitted to the EPA as
a provision of the SIP and shall not be federally enforceable.''
According to the State, this revision was made to mirror the definition
found in Section 25-7-105.1 of the Colorado Air Pollution Prevention
and Control Act.
During the State's public comment period on this regulatory change,
EPA stated in an August 12, 1994 letter that it could not approve the
statement quoted above as part of the SIP. Any provision that has been
submitted by the State and approved by EPA as part of the SIP is
considered to be federally enforceable regardless of whether it is
required by the Act or more stringent than the Act. Similarly, terms
and conditions incorporated into a permit that is issued under an EPA-
approved permitting program, such as new source review or title V
operating permits, are also generally considered to be federally
enforceable. 2 The only way a State can change the Federal
enforceability of any provision that has been approved by EPA as part
of the SIP is by submitting a request for revision to the SIP and by
receiving EPA approval of the SIP

[[Page 66048]]

revision (through notice and comment rulemaking via the Federal
Register).
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\2\ States can designate certain provisions in a title V permit
that have not been approved as part of the SIP or that are not
otherwise federally enforceable or federally required as ``State-
only'' in a title V operating permit, and those terms would not be
considered federally enforceable. (See 40 CFR 70.6(b)(2).)
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EPA believes the statement in the State's definition of ``federally
enforceable'' quoted above is thus misleading to the public and the
regulated community.
In EPA's January 21, 1997 rulemaking, EPA approved the definition
of ``federally enforceable'' into the SIP in its entirety. (See 62 FR
2914.) However, for the reasons discussed above and in EPA's August 12,
1994 letter to the State, EPA believes its approval of the above-quoted
statement was made in error. Consequently, EPA is proposing to correct
its January 21, 1997 rulemaking to disapprove the statement in the
State's definition of ``federally enforceable'' which states that any
provision, standard or regulation not required by the Act is not to be
submitted as part of the SIP and shall not be federally enforceable.
EPA is proposing this correction pursuant to section 110(k)(6) of the
Act.

II. Correction of October 5, 1979 Rulemaking

On October 5, 1979, EPA approved several submittals from the State
of Colorado, which were made pursuant to the 1977 revisions to the Act.
(See 44 FR 57401-57411.) In that action, EPA listed House Bill 1109 in
40 CFR 52.320(c)(14)as one of the submittals being approved (see 44 FR
57409, October 5, 1979). House Bill 1109 repealed and reenacted the
State's Air Quality Control Act. The bill was signed into law by the
Governor on June 20, 1979 and submitted to EPA on July 23, 1979, along
with House Bill 1090 (regarding burning of solid wastes) and Senate
Bill 1 (regarding provisions for reducing motor vehicle emissions). In
the preamble to the October 5, 1979 rulemaking, EPA discussed the
State's July 23, 1979 submittal of the three bills. EPA indicated that
it was taking no action on House Bill 1109 at that time and would
propose action in the Federal Register at a future date to take public
comment on the acceptability of the State's revised Air Quality Control
Act (see 44 FR 57403). Since EPA clearly stated in the preamble that it
was not taking action on House Bill 1109, EPA erred in listing House
Bill 1109 as being approved as part of the SIP in 40 CFR 52.320(c)(14).
Therefore, pursuant to section 110(k)(6) of the Act, EPA is proposing
to amend the regulatory text regarding the State's July 23, 1979
submittal to remove the reference to House Bill 1109. 3
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\3\ Note that the provision in 40 CFR 52.320(c)(10) promulgated
on October 5, 1979 was renumbered as 40 CFR 52.320(c)(15) on June
27, 1980. See 45 FR 43411.
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Although EPA's October 5, 1979 rulemaking indicated that EPA would
propose action on House Bill 1109 at a future date, EPA no longer
believes it is necessary to take action on House Bill 1109 or any
successor provisions in the State's Air Quality Control Act. Generally,
EPA does not believe it is necessary to approve State authorizing
legislation into the SIP. Instead, EPA needs to be satisfied that such
authorizing legislation exists and that it shows that the State has
adequate legal authority to adopt, implement, and enforce the SIP.
Therefore, EPA will not be taking action on House Bill 1109.

III. Correction of September 23, 1980 Rulemaking

On September 23, 1980, EPA approved various SIP submittals from the
State of Montana intended to address the 1977 revisions to the Act. In
that action, EPA mistakenly revised 40 CFR 52.320, which identifies SIP
approvals for the State of Colorado, to reflect approval of these
various Montana SIP submittals (see 45 FR 62984). EPA's original
intention with the September 23, 1980 rulemaking was to revise 40 CFR
52.1370(c)(8) for the State of Montana's plan, but EPA promulgated the
language regarding Montana's SIP at 40 CFR 52.320(c)(8). On June 30,
1982, EPA partially corrected this error for Montana by promulgating
the September 23, 1980 approval at 40 CFR 52.1370(c)(10). (See 47 FR
28373.) However, no correction was ever made to the ``Identification of
Plan'' for Colorado at 40 CFR 52.320. Consequently, EPA is proposing to
revise 40 CFR 52.320(c)(8) to reinstate the previous Colorado SIP
approval promulgated at 52.320(c)(8), as it was last revised on March
2, 1976 (see 41 FR 8958).

IV. Proposed Action

EPA is proposing to revise 40 CFR 52.320(c)(72)(I)(D) to exclude
Sections V.B. and VII.A.5. of Part B of Regulation No. 3, which pertain
to the State's PSD program, from the approved SIP.
EPA is proposing to correct its January 21, 1997 approval of
Section I.B. of Part A of Regulation No. 3 (as in effect on September
30, 1994) to disapprove the last sentence in the definition of
``federally enforceable'' which states that any provision, standard or
regulation not required by the Act is not to be submitted as part of
the SIP and shall not be federally enforceable.
EPA is proposing to amend 40 CFR 52.320(c)(15) to remove the
reference to House Bill 1109, which was incorrectly listed as being
approved in EPA's October 5, 1979 Colorado rulemaking (see 44 FR
57409).
Last, EPA is proposing to amend 40 CFR 52.320(c)(8) to reinstate
the Colorado SIP approval promulgated on March 2, 1976 (see 41 FR 8958)
that was incorrectly replaced in a September 23, 1980 rulemaking (45 FR
62984).
EPA is making these corrections pursuant to section 110(k)(6) of
the Act.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.

V. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
The proposed corrections would remove certain requirements from the
SIP. However, regardless of EPA's final action, these requirements will
still apply as a matter of State law. Thus, the proposed corrections
would not alter the impact of these requirements on small entities, and
EPA certifies that the removal of such requirements from the SIP would
not have a significant economic impact on a substantial number of small
entities.
The proposed corrections would also result in a disapproval of
certain language in the State's definition of federally enforceable in
its permitting regulations. Disapproval of this language would not
create any new requirements and would not alter requirements that the
State is already imposing. Therefore, EPA certifies that this
disapproval would not have a significant economic impact on a
substantial number of small entities.

[[Page 66049]]

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed corrections do not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action would impose no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, would result from this
action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.

Dated: November 17, 1997.
Patricia D. Hull,
Acting Regional Administrator, Region VIII.
[FR Doc. 97-32926 Filed 12-16-97; 8:45 am]
BILLING CODE 6560-50-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-32926. Public record. Not legal advice.